FOI Advocate Blog

The NFOIC open government blog is a compendium of original concepts and analysis as well as ideas, edited excerpts and materials from a variety of sources. When the information comes from another source, we will attribute it and provide a link. The blog relies on the accuracy and integrity of the original sources cited; we will correct errors and inaccuracies when we become aware of them.

Palo Alto, Calif., is already well known as a global center of technology innovation, with companies from Google to Facebook having once called it home. However, the city itself hasn't fully embraced technology's potential to disrupt local government – until now.

The city of Palo Alto is announcing Tuesday the launch of a new open data platform that represents a first step to becoming a truly digital city. The platform, powered by Junar, will give Palo Alto’s tech-savvy residents and all other interested developers a wealth of easily consumable data in hopes that they will go off and create new, useful applications that tie the city’s residents closer together and change their view of government from a provider of services to a facilitator of community building.

TALLAHASSEE — Gov. Rick Scott said he was championing transparency in May when he gave the public access to his emails by posting them online for anyone to see.

But what he failed to say at his May 3 news conference launching "Project Sunburst" was that the emails he made public were not the emails in his official state account. The emails the public actually read online were from a different account used almost exclusively by conservative supporters.

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"It was always my understanding that all of the governor's email accounts were going to be listed," said Barbara Petersen, president of the First Amendment Foundation. "I find it very odd and misleading that we're only getting the (positive) stuff."

Solana Beach Deputy Mayor Dave Roberts worked with his colleagues on the Solana Beach City Council in a special session to unanimously pass a resolution to reaffirm the city’s commitment to the Brown Act.

“I was disappointed when I learned that the state budget would no longer contain funding to implement certain components of the Brown Act,” Roberts said. “Our resolution not only reaffirms our commitment to following the Brown Act, but firmly states that the public has remedies to ensure the actions of our city government are open and transparent.”

SANTA FE, N.M. – Citizens have a right to access public records kept by an independent contractor on behalf of state or local governments in New Mexico, the state Court of Appeals ruled in a decision welcomed by open government advocates.

The court's ruling is important for preserving government transparency, particularly in an era when governments are privatizing many public seervices, Dolph Barnhouse, a lowyer for the New Mexico Foundation for Open Government said Monday

Our undersigned groups are writing to oppose a troubling provision in the Intelligence Authorization for Fiscal Year 2013, which makes the unauthorized disclosure of any classified information a punishable offense, regardless of its public policy significance, and threatens free speech rights and due process of current and former federal employees. We urge you to oppose this misguided attempt to prevent disclosures of classified information. We agree that leaks that endanger our national security must be punished and prevented—but there are better ways to do this.

Section 511 grants the Director of National Intelligence (DNI) and intelligence agency heads extraordinary authority to penalize federal employees in the intelligence community, including depriving them their pensions. They can do so without a criminal conviction, based on their “determination” that an employee knowingly violated a non-disclosure agreement by disclosing classified information to “unauthorized persons or entities.”

Unauthorized disclosures are already barred by non-disclosure agreements that personnel with security clearances must sign. In addition, current law allows the government to strip pension benefits from employees or former employees convicted of illegally disclosing classified information (Section 8312(c) of title 5). Revocation of a pension earned through decades of loyal service to this nation is an extraordinary penalty that should not be imposed unless the government proves guilt beyond a reasonable doubt in a court of law. Under this legislation, the DNI is provided far too much discretion to take pension benefits away from employees in secret with no oversight or judicial review.

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This policy does not protect our nation’s legitimate secrets, but instead opens the door to abuse and chills critical disclosures of wrongdoing.

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Section 511 is not an anti-leaks policy, it’s an anti-speech policy.

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We urge you to oppose the Intelligence Authorization Bill so long as the proposed policy in Section 511 remains.

A few state FOIA and local open government news items selected from many of interest that we might or might not have drawn attention to earlier in the week:

San Diego County supervisors poised to uphold open meeting law, despite state action

San Diego County supervisors are expected to affirm their allegiance to open government Tuesday in response to the state suspending some requirements of the Brown Act as a means of cutting costs. The Ralph M. Brown Act, enacted in 1953, required open, publicized meetings and guaranteed the public could participate. Last month, the Legislature agreed to suspend for three years a requirement that local governments post agendas 72 hours in advance of meetings.

The Rutgers Board of Governors violated the state’s Open Public Meetings Act by failing to inform the public of issues it planned to discuss in a closed session at a 2008 meeting, and for improperly discussing public matters about the athletics program in closed session, the state’s highest court ruled today. The New Jersey Supreme Court’s decision makes it clear that government bodies must provide the public with an agenda that describes issues to be discussed to the extent known, rather than merely making generic references about what might be discussed.

South Dakota lawmaker protests $350 bill for public records request, says amount shuts out public access

SIOUX FALLS, S.D. — A South Dakota state lawmaker is protesting the $350 cost of getting records of how much the city of Sioux Falls is paying a private law firm. An assistant Sioux Falls city attorney says the cost represents the time it takes to black out information in the bills that's protected by attorney-client privilege. Hansen asked for three years' worth of records.

JUNEAU, Alaska -- The state has proposed new regulations pertaining to public interest fee waivers or reduction in costs for public records. The proposal would allow for a fee waiver or reduction if the requestor establishes, and an agency finds, the records are likely to significantly contribute to the understanding of state government activities.

Brewster County Judge Val Beard walked local media and several Alpine City Council members through the process of accessing public records last week at the county courthouse. The meeting began the same place all Class A and B Misdemeanors (jailable offenses with fines of up to $4,000) start — County Attorney Steve Houston’s office. Beard explained that once an arrest is made, an officer will fill out an offense report and bring it to the office for further review, where the report will be made into the appropriate files.

DEWEY BEACH -- The state's Attorney General Office has found that the Dewey Beach Town Council disregarded opening meeting laws under the Freedom of Information Act for at least 26 meetings from Jan. 15, 2011, through April 14, 2012. In the decision dated July 13, Deputy Attorney General Kent Walker specifies meetings held on Nov. 11 and 18 had agendas that lacked intent on holding an executive session. The town also failed to give agenda notice of major issues to be discussed.

ARAPAHOE COUNTY, Colo. -- The public will get fewer details about theater shooting suspect James Holmes, after Arapahoe County Judge William Sylvester ordered the University of Colorado Denver to deny release of what are normally public records about the former CU graduate student. The judge’s order cites numerous media requests for emails from Holmes’ university email account. CALL7 Investigator Keli Rabon requested access to copies of the suspect’s emails and other records related to the suspect on Monday.

COLUMBIA, Mo. — County and school boards, city councils, public commissions and special district governing bodies in the state of California may well continue to hold their meetings in the figurative “sunlight,” as well they should.

But in an action that has received little notice except for niche blogs, the 59-year old “Brown Act,” the state open meetings law that compels them to hold most deliberations, discussions and decision-making sessions in public, was largely eviscerated four weeks ago.

The Legislature had its reasons—too little money, supposedly—and I will try and restrain my inner cynic and its tendency to see more sinister motives. But a series of recent events provides a sound context for those suspicions.

Five months before the Legislature suspended key provisions of the Brown Act, the Los Angeles County District Attorney informed the Board of Supervisors in the largest county in the nation’s largest state that a meeting it had held behind closed doors with Gov. Jerry Brown was a clear violation of the state’s open meeting law. The DA took no follow-up action. And, while the county government may have been a bit chagrined, their public posture was anything but apologetic.

Then, just two months before the Legislature eviscerated the Brown Act, the Los Angeles County Board of Supervisors settled a lawsuit brought by a nonprofit group that focuses on governmental accountability and openness, over that meeting with Brown—and two other illegal meetings last September.

In that lawsuit settlement with Californians Aware (CalAware), LA County’s governing body admitted that it had held three illegal, closed-door meetings last September, one of them with the governor in attendance. The Supervisors also agreed to mend their ways, release transcripts of the three illegal meetings and pay CalAware $14,750 for legal expenses incurred in bringing the lawsuit about those violations.

Open government advocates in California are among the most sophisticated outside the Washington beltway. In court, they have enjoyed a won-loss record their counterparts in most other states consider enviable.

CalAware may well have thought it could chalk up another victory for access when it reached the lawsuit settlement with LA County last April. Little did CalAware and its supporters know that their victory would be virtually undone by the California Legislature just two months later, in June 2012.

The Supervisors’ closed-door meeting with Brown, which dealt with a controversial plan to move state inmates into county jails, got attention in the Los Angeles Times and in a column I published on Huffington Post and on the NFOIC website after the DA issued its inconsequential reprimand letter declaring that the reasons for making the meeting secret did not satisfy legal requirements.

By contrast, the legislative action by which most legal experts agree key provisions of the Brown Act have been rendered virtually unenforceable has received scant attention except for blogs on sites of press associations and First Amendment and open government groups.

The Brown Act is named for Ralph M. Brown, a former state Assembly speaker who is no relation to the current governor or his father, also a former governor.

The Legislature’s supposed justification for suspending the Brown Act is that complying with the openness and advance notice requirements of the law is simply too costly. Under the state constitution, the state is supposed to reimburse local governments for “mandates” it imposes upon them.

The First Amendment Coalition (FAC), another California group that advocates and pushes for open government in the state, said local governments “would be foolish not to continue” meeting the openness and advance notice requirements of the Brown Act. But a blog on the FAC website also agreed that those key provisions “are not currently enforceable” with the indefinite legislative suspension in place. FAC, like CalAware, is not shy about bringing lawsuits when governmental agencies disobey or try to skirt transparency laws.

CalAware is taking no chances. It is circulating an online petition asking civic-minded Californians to urge legislators to “Free the Brown Act from Budget Suspense!” It has also alerted its followers to be on the lookout for local governmental entities that practice these time-tested abuses:

“Ambush actions,” where policies and ordinances are passed without mention on agendas, being portrayed as emergency measures, even when there is no real urgency.

“Misleading/mislabeled actions,” where local bodies adopt measures with scant resemblance to what is listed on their agenda, and;

“Incomprehensible agendas,” where convoluted and legalistic language masks the intent of an action that would be controversial if people understood it.

CalAware’s General Counsel Terry Francke warns that for the time being, with the key provisions of the Brown Act suspended, it would not be possible to bring successful lawsuits against local governments that flaunt the open meeting requirements.

Should Californians who care about government transparency be worried? Taken and considered together, the LA Supervisors' shameful behavior, the DA’s wrist-slap reprimand and the Legislature’s action in suspending key Brown Act provisions suggest they should be.

The supposed justification for holding the September 26 meeting in secret was that it dealt with a matter related to public safety. But the transcripts that came to light as a result of the CalAware lawsuit, show that the stated justification for the secret meeting was a laughing matter for those in attendance.

The transcript shows that those in attendance – including the Supervisors, the governor and the County Counsel – paid considerable attention to how they would couch their justification for secrecy to make it appear to fit the requirements of the Brown Act.

Gov. Brown: “Let’s get our Brown Act cover story.”

County Counsel Andrea Ordin: “You may have folks out there who want to ask questions.”

Supervisor Gloria Molina: “There’s press waiting in the lobby so we need to know.”

Thanks to the transparency the CalAware settlement brought, Californians get a first-hand look at the behavior of their public officials.

California’s voters may yet write the final chapter of the “Brown Act cover story.” A tax-raising ballot initiative proposed by Gov. Brown himself would, if passed, exempt the Brown Act from the state’s unfunded mandate requirement, which has not been strictly enforced in recent years anyway. And, if CalAware's petition is successful, a measure still pending in an Assembly committee will eventually allow voters to constitutionalize the suspended notice and disclosure requirements, removing any doubt about their enforceability in the future.

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Ken Bunting is executive director of the National Freedom of Information Coalition (NFOIC) at the University of Missouri School of Journalism. He is a former reporter and top editor who worked for the Fort Worth Star-Telegram, the Los Angeles Times and the Seattle Post-Intelligencer, among other newspapers.

COLUMBIA, Mo. (July 25, 2012) – In an important case supported by the Knight FOI Fund, a grassroots public-interest organization has won a settlement agreement with the northern California city of Auburn over retention and disclosure policies regarding government emails.

The settlement agreement with the First Amendment Coalition (FAC) of California, approved by the Auburn city council this week, requires that government officials save emails for at least two years, replacing a policy and practice of deleting most emails after 30 days. The agreement also assures public access to emails about government business even when they are sent or received on personal computers or through personal email accounts.

Peter Scheer, executive director of FAC, and Kenneth F. Bunting, executive director of NFOIC, commended the settlement agreement as a good and important outcome regarding an issue with implications that reach far beyond the northern California community that was named in the lawsuit.

WASHINGTON — A judge is backing the State Department’s refusal to provide 23 classified embassy cables even though they had already been released by the website WikiLeaks and published by various news organizations.

The American Civil Liberties Union had sought the cables under a Freedom of Information Act request, and sued after the State Department refused to provide them.

U.S. District Court Judge Colleen Kollar-Kotelly ruled Monday that the WikiLeaks disclosure “is no substitute for an official acknowledgement” by the government.

A study released Monday ranked access to public records in the Carolinas as among the worst in the country.

The study by the State Integrity Investigation, which ranks states by their corruption risk, found that both North and South Carolina public record laws fail to provide an appeals process for denied requests or impose penalties on agencies violating public records laws.

North Carolina’s public access to information ranked 43rd and South Carolina ranked 50th in the study, which also evaluated state budget processes, lobbying disclosure and judicial accountability. Both received an “F” in public access to information.

LOS ANGELES - The Los Angeles Times claims in court that a deal to privatize Los Angeles Memorial Coliseum was negotiated behind closed doors, and that the Coliseum Commission blew off the newspaper's requests for public records.

Joining the Times as plaintiff in Superior Court is Californians Aware, a free speech advocacy group. They sued the Los Angeles Memorial Coliseum Commission for public records, and asked the court to reject a lease to the (nonparty) University of California, and let the public vote on the deal.

Frustrated by what she felt was a lenient plea bargain for two teens who pleaded guilty to sexually assaulting her and circulating pictures of the incident, a Louisville 17-year-old lashed out on Twitter.

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Now, [Savannah] Dietrich is facing a potential jail sentence, as the attorneys for the boys have asked a Jefferson District Court judge to hold her in contempt because they say that in naming her attackers, she violated the confidentiality of a juvenile hearing and the court’s order not to speak of it.